Compilation of Rules and Regulations of the State of Georgia
Department 110 - RULES OF GEORGIA DEPARTMENT OF COMMUNITY AFFAIRS
Chapter 110-12 - MINIMUM STANDARDS AND PROCEDURES
Subject 110-12-8 - PROCEDURE AND OPERATIONS OF ANNEXATION ARBITRATION PANELS
Rule 110-12-8-.03 - Annexation Arbitration Process

Universal Citation: GA Rules and Regs r 110-12-8-.03

Current through Rules and Regulations filed through September 23, 2024

(1) Petition for Annexation Arbitration. A petition for annexation arbitration must be filed with the Department to begin the process.

(a) HB2a. The Department's HB2a Notification of Objection to Annexation and Request for Panel form must be used by the party petitioning for appointment of an arbitration panel. All fields on the form must be completed, including: The County name; The City name; A legal description of the subject property or properties; and Contact information for the local governments and property owners.

Form HB2A shall be accompanied by supporting materials, including a copy of the Notice of Annexation provided in O.C.G.A. § 36-36-111, a copy of the Notice of Objection provided in O.C.G.A. § 36-36-113, the owner's/developer's petition for annexation, documentation showing that a majority of the elected body of the objecting local government voted in favor of the objection, and any additional correspondence or materials exchanged between the parties relevant to the proposed annexation.

(b) Verifiable Delivery. The HB2a form and accompanying materials must be sent to the parties and the Department by Verifiable Delivery. In all circumstances, regardless of the method of delivery, the means of verifying delivery shall be clearly evident on the materials provided.

(2) Review of the Petition. Upon receipt of a petition for annexation arbitration, the Department will review the petition and determine whether the conflict is eligible for annexation arbitration. In making this determination, the Department must consider if the following conditions have been met:

(a) Standing. Whether the petitioner is or is an authorized representative of the affected county governing authority.

(b) Completeness. Whether the petition is complete and accompanied by the required supporting materials, as described above, including the provision of a mechanism to verify delivery for all statutorily-required notices as defined above.

(c) Timeliness. Whether all statutorily-required notices issued thus far into the process have included all materials and information required by statute and whether such notices have been timely delivered, in accordance with the timeline prescribed by statute, based upon the Department's verification.

1. Notice of Annexation. Within thirty (30) days of a municipal corporation's acceptance of a petition of annexation, the municipal corporation shall notify the governing authority of the county and any impacted school system in which the territory to be annexed is located by verifiable delivery. Statute provides that this Notice of Annexation includes the proposed zoning and land use for such area.

2. Notice of Objection. The county can then object by majority vote, as defined by applicable general or local law. The objection will be delivered to the municipal corporation and the Department by verifiable delivery, no later than the end of the forty-fifth (45th) day following the county's receipt of the Notice of Annexation from the city.

The Department shall request any additional information from the local governments necessary for it to make determinations related to this section. The local governments shall comply in the prompt delivery of the requested information within the timeframe provided by the Department when making its request.

(d) Jurisdiction. Whether the petition is based upon an objection that is subject to annexation arbitration as provided in section O.C.G.A. § 36-36-113 of statute. The Department shall make no determination as to the validity of the objection as such determination is reserved exclusively to the arbitration panel. Rather, the Department shall focus its determination on whether the objection:

1. Advances any arguments related to a potential material increase in burden upon the county resulting from change in proposed zoning or land use, proposed increase in density, and/or infrastructure demands related to the proposed change in zoning or land use. Objections failing to advance such arguments cannot be considered by an annexation arbitration panel.

2. Provides any information purporting to be evidence demonstrative of any potential financial impact that could result from the proposed annexation.

The Department will decline to advance petitions for annexation arbitration that fail to meet all of the conditions detailed above. Once such a determination has been reached, the Department will notify the municipal and county governments of this determination and explain its rationale for doing so. The objecting local government may revise, amend, and perfect its petition and resubmit it for the department's review if sufficient time remains to provide it via verifiable delivery to the municipal corporation and the Department prior to expiration of the forty-five (45) days allotted to the county for filing its Notice of Objection.

(3) Advancement of the Petition. If, after reviewing the petition, the Department determines that the annexation conflict is eligible for arbitration via this process, it shall notify the parties listed below. The petitioning local government; The local government whose proposed action is the subject of the arbitration; The impacted school system; Other members from the local governments possibly including but not limited to the planning directors, the county and city manager, and the chief elected officials; Members of the Georgia Municipal Association and the Association of County Commissioners of Georgia; The planning director of the regional commission in which the subject property is located; Appropriate additional staff at the Department; Qualified arbitration panelists from the municipal, county, and academic pools as provided by statute.

In providing this notice to the local governments, the Department shall request that each government designate a case coordinator and communicate that individual's identity to the department within a timeframe communicated by the Department when making such request.

(4) Initiation of Annexation Arbitration Process. The Department shall follow this process in appointing a panel.

(a) Availability and Eligibility to Serve. Once the Department has provided notice that the petition will advance, it shall attempt to appoint an arbitration panel. The Department will inform eligible individuals within the pools of panelists established for this purpose regarding the matter that their participation on a panel has been requested and ask them to confirm their availability and eligibility.

(b) Selection of Potential Panelists. Once the Department has received the necessary number of panelists: four (4) from the county pool, four (4) from the municipal pool, and three (3) from the academic pool, the Department will contact the city and county for strikes. If an excess of panelists from one or more pools is achieved, the Department shall randomly choose from the available panelists within each pool to reach the number of panelists required for that pool.

(c) Striking Potential Panelists. The Department shall provide the county government the name, title/position, term of office (if from a local government pool) or qualification (if an academic panelist, and the residency of the potential panelists from the municipal and academic pools. The Department shall provide the municipal government the name, title/position, term of office (if from a local government pool) or qualification (if an academic panelist, and the residency of the potential panelists from the county and academic pools. The municipality shall strike two (2) potential panelists from the county pool and the county shall strike two (2) potential panelists from the municipal pool. The municipality and the county shall each strike one (1) panelist from the academic pool and one (1) alternate strike. In the event that both local governments opt to strike the same academic panelist, the alternate panelist selected by the local government whose strikes are received by the Department second (in order of their receipt) will be struck from the pool. Ultimately, the panel will be appointed consisting of the five (5) potential panelists remaining unstruck after all strikes have been received. The local governments shall use whatever criteria seems most appropriate to them to select their strikes, but under no circumstances shall potential panelists be contacted by any local government, applicant or property owners, or impacted school system, or on behalf of any the aforementioned parties prior to appointment of an arbitration panel.

The local governments shall expeditiously inform the Department of the potential panelists they choose to strike. This information shall be provided by the local government's representative to the Department's process manager via electronic mail. These strikes shall be provided to the Department within the timeframe it provides to the local governments when it requests strikes.

(d) Appointment of the Panel. The forgoing process having successfully completed, an impartial third-party panel will be appointed no later than the fifteenth (15th) day following the date when the Department first received a complete and timely petition to object from a county with standing to request arbitration. The panelists and the individuals and entities listed in section 110-12-8-.03(3), above, will be notified via electronic mail of the panel's appointment.

If, despite its efforts, the Department is unable to fulfill the request for an arbitration panel within the fifteen (15) days provided by statute (e.g., an insufficient number of eligible panelists were available to serve, strikes were not provided to the Department within the requested timeframe, etc.), the Department will necessarily decline to appoint a panel. Statute offers no provision for extension of this timeline or waiver of this requirement. In such a case, the Department shall notify the individuals and entities listed in section 110-12-8-.03(3), above, of the impasse, that the Department is unable to fulfill the request for a panel, and recommend that the objecting party consider seeking judicial resolution of the conflict.

Appointment of the panel concludes the Department's active role in the process. The Department shall not participate in the scheduling or conducting of meetings/hearings, management of the panel (except in the event of the withdrawal or subsequent ineligibility of a panelist), collecting owed costs, filing of deed restrictions, etc.

(e) Replacement of Panelists. In the event that a panelist becomes or is determined to be ineligible or otherwise unable to participate in the arbitration process subsequent to the panel's appointment, such a panelist may withdraw or be withdrawn from the panel.

The Department will first seek availability of the two potential panelists previously struck from the withdrawn panelist's pool. If either or both of the previously struck panelists is still available and eligible to participate, the Department shall inquire if the local government that struck the panelist(s) is willing to withdraw its strike and accept the appointment of the previously struck panelist as a replacement.

If the local government is unwilling to accept a previously-struck panelist, the Department will again seek available panelists from the entire pool of panelists. The first eligible panelist indicating to the Department that they are available to serve will be appointed as a replacement.

(5) Panelists.

(a) Remuneration. The members of the arbitration panel will receive the same per diem, expenses, and allowances for their service on the panel as authorized by law for members of the General Assembly.

(b) Selection. Panelists will be solicited from an existing pool of eligible participants, meaning they meet the below requirements:

1. A current elected official for a county or city or, someone who was an elected official for a county or city within the past six (6) years; or

2. A person with a master's degree or higher in planning or an MPA, who is currently employed by an institution of higher learning in Georgia, other than the Carl Vinson Institute of Government of the University of Georgia; and

3. They have attended the statutorily mandated training regarding annexation arbitration provided by the Carl Vinson Institute of Government. Such training shall include, among other things, content intended to facilitate panelist's compliance with applicable regulations and statute related to the conduct of meetings. All potential panel members must have attended this training.

(c) Frequency of Participation. As nearly as practicable, no one from the pool of potential panelists should serve on a panel more than four (4) times in one (1) calendar year.

(d) Residency. Panelists shall not participate in an arbitration panel if they currently live in the county which has interposed the objection, or any municipality located wholly or partially in such county. Pool members shall notify the Department of their updated address if they change residence into the territory of a different local government while in the pool of potential panelists.

(6) Meetings. The panel, once appointed, should meet as soon as practicable after the appointment and receive evidence and argument from the local governments and the applicant or property owner. These meetings can take place in person, virtually, or via teleconference. Any meeting should provide an opportunity for all affected parties to be present.

Any meeting within which evidence is to be presented or argument to be made shall be open to the public, Any opportunity for input or involvement by the general public in any meeting is at the discretion of the panel (or its elected chair, if such a position is created), however, under no circumstance shall public comment be permitted to impair, impede, interrupt, or otherwise frustrate the presentation of evidence and arguments by the local governments.

At least 14 days prior to the meeting of a panel, the hearing notice for the meeting shall be sent to the Department. The Department will put the notice on their website and share it with the county, municipality, and applicant/property owner. The county and city are encouraged to post public notice of the such meetings in accordance with their own standard practices.

The panel shall meet at times, dates, locations, and via media of its own choosing and the affected parties must comply with the scheduling set by the panel. In doing so, the panel shall make all reasonable effort when dictating its schedule to allow attendance by all affected parties. Ultimately, however, the panel shall dictate the schedule of meetings, not the affected parties.

Written record of all meetings shall be kept by the panel (its elected secretary, its appointed hearing officer, and/or court reporter). Such records shall include, but not be limited to:

Identities of panelists and representatives of affected parties in attendance (and any absences of required attendees); Copies of documents provided to the panel and/or produced by the panel (e.g.: agenda, if created; schedule of meetings; documentary evidence presented; Motions made by panelists and the local governments; and, Outcome of votes taken by the panel including the number of those in favor and opposed, the identity of those in favor and opposed.

All determinations and decisions of the panel whether pertaining to its own organization (e.g., electing a chair), the merits of the case (e.g., determining whether to impose zoning restrictions), or any other substantial matter shall be made on the basis of a majority vote of the five panelists. All votes shall be "Yay" or "Nay" with no abstentions permitted.

(7) Evidence and Argument. The panel shall conduct a meeting at which the local governments as well as the applicant or property owner shall present evidence and arguments related to the following topics: The existing local comprehensive plans of both the County and City; The existing land use patterns in the area of the subject property; The existing zoning patterns in the area of the subject property; Each jurisdiction's provision of infrastructure to the area of the subject property and to the areas in the vicinity of the subject property; Whether the county has approved similar changes in intensity or allowable uses on similar developments in other unincorporated areas of the County; Whether the county has approved similar developments in other unincorporated areas of the county which have a similar impact on infrastructure as complained of by the County in its objection; and Whether the infrastructure or capital outlay project which is claimed adversely impacted by the county in its objection was funded by a county-wide tax.

The county shall provide supporting evidence that its objection is consistent with its local comprehensive plan and the pattern of existing land uses and zonings in the area of the property, which may include, but not be limited to, adopted planning documents and capital or infrastructure plans. Likewise, the municipal corporation and/or the applicant or property owner shall provide supporting evidence that the proposed annexation is consistent with the municipality's local comprehensive plan and the pattern of existing land uses and zonings in the area of the property, which may include, but not be limited to, adopted planning documents and capital or infrastructure plans. Each of these parties may provide evidence and argument undermining the evidence and argument presented by its opposition.

A municipality may opt maintain neutrality on a proposed annexation action and defer all advocacy in support of such an action to the applicant or property owner who has made such a proposal. Such a position shall not be viewed as unreflective of good faith participation in the process. Such a position shall have no bearing on the panel's consideration of the merits of the proposed annexation.

Failure of an applicant or property owner to provide evidence and argument advocating for the proposed annexation shall have no bearing on the panel's consideration of the merits of the proposed annexation.

Evidence and argument not relevant to the grounds for objection provided at O.C.G.A. § 36-36-113 or related to the items listed and discussed above (e.g., arguments related to contiguity of borders or the creation of "unincorporated islands") are beyond the panel's purview and, as such, shall not be presented to or entertained by the panel. In complying with this rule avoiding raising arguments to the panel that are beyond the panel's purview, a local government and/or applicant or property owner reserves and does not waive any such arguments.

(8) Deliberation and Decision. The panel shall meet to deliberate and make decisions on the outcome of the arbitration. This may occur in one or more meetings, as determined by the panel. This may occur during the same meeting as the meeting(s) within which evidence and argument are presented, but it is not necessarily so.

The panel shall first determine whether or not the grounds for objection as specified in the objection are valid pursuant to O.C.G.A. § 36-36-113. In reaching its determination, the panel shall consider the local governments' arguments and evidence as it relates to the grounds provided by statute and the directions provided above. After deliberation, the determination of the panel shall be established by majority vote of the five panelists.

If the panel determines that an objection is valid, they shall, by majority vote of the five (5) panelists, determine whether or not it necessary to establish development limitations including reasonable zoning, land use, or density conditions that are applicable, to the annexation and propose reasonable mitigating measures as to an objection pertaining to infrastructure demands.

The panel may determine by majority vote of the five panelists that either of the local governments has advanced a position that is not valid on its face. If the position advanced by a local government determined by the panel to have so wholly invalid, the costs associated with the annexation arbitration process which would have generally been divided equally between the local governments will be borne in their entirety by the party deemed to have advanced such a position. The rationale for this method of apportioning costs shall be clearly communicated in the panel's findings. The panel's determination(s) and any necessary development limitations and/or other mitigation measures shall be detailed in writing.

All determinations and decisions of the panel shall be made on the basis of a majority vote of the five panelists. All votes shall be "Yay" or "Nay" with no abstentions permitted.

(9) Process Options.

(a) Court Reporter & Hearing Officer. The panel may elect to employ a court reporter and/or hearing officer to assist the panel in creating procedural records and/or managing the hearing process. All costs and charges related to the employment of a court reporter and/or hearing officer shall be evenly divided between the local governments except as otherwise provided. The court reporters and hearing officers available to the panel shall be the Georgia Court Professional Directory hosted by the Judicial Council of Georgia, Administrative Office of the Courts. Hearing Officers shall be selected from the court professionals labeled "neutrals" in the directory while court reporters shall be selected from among those labeled as such in the directory.

(b) Decision Extension. While generally, the panel is to render a decision regarding the annexation arbitration dispute no later than sixty (60) days following its appointment, the chair of the panel is authorized to extend this deadline once, for a period of up to ten (10) business days. The need for such an extension shall be based upon such criteria as the chair deems appropriate and necessary to conform with the purpose of the process. Such an extension shall be immediately provided in writing to the local governments, the applicant or property owner, and the Department via verifiable delivery.

(c) Postponement. The City and County may, by mutual agreement, postpone the arbitration process for a period of up to one hundred eighty (180) days to negotiate a potential settlement. This postponement will pause the sixty (60)-day deadline. Any such agreement shall be immediately provided in writing to the applicant or property owner, the panel, and the Department via verifiable delivery.

(d) Costs. The arbitration costs will generally be split evenly between the county and the municipal corporation. However, as provided above, in some circumstances, the panel may elect to apportion the entirety of the costs associated with the arbitration process to one party. Regardless of the manner of apportioning costs (i.e., evenly split or wholly apportioned to one party), all associated process costs, including any reasonable costs of the property owner or owners participating in the process, will be apportioned in the same manner. Fees shall be payable to, as apportioned, within 45 days of the conclusion of the arbitration process as provided in these rules.

(e) Withdrawal. The objecting local government may, by majority vote of its elected body, as defined by applicable general or local law, withdraw its objection at any point of the process for any reason. Likewise, the applicant or property owner may withdraw the annexation petition at any time for any reason, thus rendering the arbitration moot. Notice of a withdrawal shall be provided to the Department, the municipality, the applicant or property owner, and, if it has already been empaneled, the panel within seven (7) days of the body's vote. Upon receipt of this notice, the Department shall acknowledge its receipt and immediately dissolve the panel. If withdrawal occurs after costs have been incurred, all parties shall be responsible for their own costs, and any costs that may have already been incurred by the panel shall be split evenly between the county and the municipal corporation.

(f) Appeal. The municipal or county governing authority or an applicant for annexation may appeal the decision of the panel by filing an action in the superior court of the county within 10 days from the verified receipt date of the panel's findings. The sole grounds for appeal shall be to correct errors of fact or of law, the bias or misconduct of an arbitrator, or the panel's abuse of discretion. Any party filing such an appeal shall provide a notice to all the affected parties, the Department, and the panel that has filed such an action. Copies of all filings including any order(s) issued as a result of the appeal shall be provided to the Department via verifiable delivery. Any unappealed order shall be binding upon the parties.

(g) Interparty Negotiations. Ongoing communication, discussion, and negotiation between the local governments and/or the applicant or property owner outside of arguments before the panel are critical to a mutually-agreeable outcome for a disputed annexation. The local governments and the applicant or property owner are urged to take every opportunity to resolve their conflict outside of hearings in front of the arbitration panel.

The county, the municipal governing authority, and the property owner or applicant shall negotiate in good faith throughout the annexation proceedings provided by this article and may at any time enter into a written agreement governing the annexation. Such agreement may provide for changing the zoning, land use, or density of the annexed property during a period of less than two (2) years. All costs that may have been incurred by the parties and/or the panel shall be apportioned as provided in the agreement. Any such agreement shall be immediately provided in writing to the local governments, the applicant or property owner, the panel, and the Department via verifiable delivery. If such an agreement is reached after the arbitration panel is appointed and before its dissolution, the panel shall hold a meeting at which the agreement shall be adopted by the panel as its findings. If such an agreement results in a withdrawal of the objection or a withdrawal of the annexation petition, the section of these rules regarding withdrawals, above, shall apply.

(10) Conclusion of Annexation Arbitration Process. The panel's findings shall be detailed in writing and provided to the affected parties and the Department by verifiable delivery within 60 days of its appointment.

(a) If the findings contain zoning, land use, or density conditions, or other mitigating measures, the county shall ensure that the findings are recorded in the deed of records of the County with the following caption description:

1. The name of the current property owner

2. Recording reference of the current owner's acquisition deed and a general description of the property

3. Clearly stating any expiration date of any restrictions or conditions

Documentation clearly demonstrating that this recordation has occurred shall be provided to the affected parties municipality, the applicant or property owner, and the Department once it has been completed.

(b) By operation of law, requiring no further action of the local governments, the applicant or property owner, the Department, or the panel, itself, the panel shall be dissolved on the ten (10th) day after it renders its findings. However, the panel may be reconvened if, upon appeal, the court remands the matter to the panel for further consideration. If so reconvened, the panel shall, again, be dissolved on the ten (10th) day after it renders its further findings.

(c) The annexation arbitration process will be understood to have concluded after: the Department has received the panel's findings; remuneration for costs has been provided; either the opportunity to appeal the panel's decision has expired or the appellate process has concluded; and, if the court has remanded the matter to the panel, the panel has completed that process and provided its subsequent findings to the local governments, the applicant or property owner, the Department, and, as appropriate, the court.

(d) Following the conclusion of this process, the city and an applicant for annexation may either accept the findings of the panel and proceed with the remaining annexation process or abandon the annexation proceeding, altogether.

(e) If at any time during the proceedings the municipal corporation or applicant abandons the proposed annexation, the county shall not change the zoning, land use, or density affecting the property for a period of one year unless such change is made in the service delivery agreement or comprehensive plan and adopted by the affected city and county and all required parties.

(f) If the annexation is completed after final resolution of any objection, whether by agreement of the parties, act of the panel, or court order as a result of an appeal, the annexing local government shall not change the zoning, land use, or density of the annexed property for a period of two (2) years unless such change is made in the Service Delivery Strategy or Comprehensive Plan and adopted by the affected city and county and all required parties.

O.C.G.A. §§ 36-36-110, et seq.; 50-8-1, et seq.

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